As filed with the Securities and Exchange Commission May 14, 2002
REGISTRATION NO. 33- ________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
STERLING CONSTRUCTION COMPANY, INC.
(Exact name of registrant as specified in its charter)
[Formerly known as Oakhurst Company, Inc.]
DELAWARE 25-1655321
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2751 CENTERVILLE ROAD - SUITE 3131
WILMINGTON, DELAWARE 19803
(Address of Principal Executive Offices) (Zip Code)
STERLING CONSTRUCTION COMPANY, INC.
2001 STOCK INCENTIVE PLAN
(Full title of the plan)
ROGER M. BARZUN
GENERAL COUNSEL
60 HUBBARD STREET
CONCORD, MASSACHUSETTS 01742
(Name and address of agent for service)
(978) 287-4275
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
PROPOSED
PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED (1) PRICE PER SHARE (2) PRICE REGISTRATION FEE
Common Stock 500,000 $1.95 $975,000 $89.70
(1) Plus such additional number of shares as may be required pursuant to the
plans in the event of a stock dividend, split-up of shares,
recapitalization or other similar change in the Common Stock.
(2) Estimated solely for the purposes of calculating the registration fee in
accordance with Rule 457(h)(1) on the basis of the last sale price of the
Common Stock as reported on the OTC Bulletin Board on May 13, 2002.
Page 1 of 8
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8, as amended, and relates to 500,000 shares of Common
Stock, $.01 par value, of Sterling Construction Company, Inc. (formerly known as
Oakhurst Company, Inc.) (the "Company") that have been reserved for issuance
pursuant to the Company's 2001 Stock Incentive Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference
in this Registration Statement:
(a) The Company's Transition Report on Form 10-K for the
transition period ended December 31, 2001;
(b) The description of the Company's Common Stock
contained in a registration statement on Form 8-A
filed pursuant to the Securities Exchange Act of
1934, as amended, (the "Exchange Act") on August 4,
1991 under its former name, Hallwood Holdings
Incorporated, and any amendments or reports filed for
the purpose of updating such description.
In addition, all documents filed by the Company after the
initial filing date of this registration statement pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act and
prior to the filing of a post-effective amendment which
indicates that all shares offered have been sold or which
de-registers all shares then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement
and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the shares of Common Stock offered hereby has
been passed upon for the Company by Roger M. Barzun, 60
Hubbard Street, Concord, Massachusetts 01742, who is Vice
president, Secretary and General Counsel of the Company.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the General Corporation Law of the State of
Delaware provides that a corporation may indemnify a director,
officer, employee or agent against expenses (including
attorneys' fees), judgments, fines and for amounts paid in
settlement in respect of or in successful defense of any
action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the
best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful.
II-1
Article Tenth of the Company's Restated Certificate of
Incorporation provides that no director of the Company shall
be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty
of loyalty to the Company or its stockholders; (ii) for acts
or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) under Section
174 of the Delaware General Corporation Law; or (iv) for any
transaction from which the director derived an improper
personal benefit. Article Tenth further provides that a
director's personal liability shall be eliminated or limited
in the future to the fullest extent permitted from time to
time by the Delaware General Corporation Law and that he or
she shall be indemnified against all expenses (including
attorneys' fees), judgments, fines and amounts paid in
settlement in respect of any action, suit or proceeding in
which such director or officer may be involved or with which
he or she may be threatened, while in office or thereafter, by
reason of his or her actions or omissions in connection with
services rendered directly or indirectly to the Company during
his or her term of office, such indemnification to include
prompt payment of expenses in advance of the final disposition
of any such action, suit or proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
5 Opinion of Roger M. Barzun as to the legality of
the shares being registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Grant Thornton LLP.
23.3 Consent of Roger M. Barzun (included in Exhibit 5).
24 Power of Attorney (included on Page II-4).
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective
amendment to this registration statement:
(i) to include any prospectus required
by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any
facts or events arising after the
effective date of the registration
statement (or the most recent
post-effective amendment thereof)
which individually or in the
aggregate, represent a fundamental
change in the information set forth
in the registration statement;
(iii) to include any material information
with respect to the plan of
distribution not previously
disclosed in the registration
statement or any material change to
such information in the
registration statement;
Provided, however, That paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form
S-8 or Form F-3 and the
II-2
information required to be included in a
post-effective amendment by those paragraphs
is contained in periodic reports filed with
or furnished to the Commission by the
registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the
registration statement.
(2) that, for the purpose of determining any
liability under the Securities Act of 1933,
as amended (the "Securities Act"), each such
post-effective amendment shall be deemed to
be a new registration statement relating to
the securities offered therein, and the
offering of such securities at that time
shall be deemed to be the initial bona fide
offering thereof; and
(3) to remove from registration by means of a
post-effective amendment any of the
securities being registered which remain
unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act,
each filing of the Company's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in the registration
statement shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to
directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or
otherwise, the Company has been advised that in the
opinion of the Commission such indemnification is
against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such
liabilities (other than the payment by the Company of
expenses incurred or paid by a director, officer or
controlling person of the Company in the successful
defense of any action, suit or proceeding) is
asserted by such director, officer or controlling
person in connection with the securities being
registered, the Company will, unless in the opinion
of counsel the matter has been settled by controlling
precedent, submit to a court of appropriate
jurisdiction the question whether such
indemnification by it is against public policy as
expressed in the Securities Act and will be governed
by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Duxbury, The Commonwealth of Massachusetts on May 14,
2002.
Sterling Construction Company, Inc.
(Issuer and Employer)
By: /s/ Patrick T. Manning
------------------------------------------
Patrick T. Manning
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears
below constitutes and appoints Patrick T. Manning, Joseph P. Harper, Sr. and
Roger M. Barzun jointly and severally his true and lawful attorneys-in-fact and
agents with full powers of substitution for him and in his name, place and stead
in any and all capacities to sign any and all amendments (including
post-effective amendments) to this Registration Statement and to file the same
with all exhibits thereto and all documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents and each of them full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the premises
as fully as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their substitute or
substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
NAME TITLE/POSITION DATE
---- -------------- ----
/s/ Patrick T. Manning Chairman & Chief Executive Officer May 14, 2002
-------------------------------
Patrick T. Manning
/s/ Maarten D. Hemsley Chief Financial Officer and Principal May 14, 2002
---------------------------------
Maarten D. Hemsley Accounting Officer
/s/ Joseph P. Harper, Sr. President & Chief Operating Officer May 14, 2002
---------------------------------
Joseph P. Harper, Sr.
/s/ John D. Abernathy Director May 14, 2002
---------------------------------
John D. Abernathy
/s/ Robert M. Davies Director May 14, 2002
---------------------------------
Robert M. Davies
/s/ Robert W. Frickel Director May 14, 2002
---------------------------------
Robert W. Frickel
/s/ Christopher H.B. Mills Director May 14, 2002
--------------------------------
Christopher H. B. Mills
II-4
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
5 Opinion of Roger M. Barzun as to the legality of the shares being registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Grant Thornton LLP.
23.3 Consent of Roger M. Barzun (included in Exhibit 5).
24 Power of Attorney (included on Page II-4).